Definition of Victim in the Convention on the Prevention and Punishment of the Crime of Genocide: On the Effect of States in Determination of Victims of Genocide and Requirement to Revise the Convention

“The fact of genocide is as old as humanity” wrote Jean Paul Sartre. Even though this statement has merit, it needs to be completed. This is because the crime of genocide gained acceleration parallel to the history of colonialism by state organisations, whose mentality was formed by their tyranny and gradually increased in magnitude. While discovering the continent of America, the Spanish, Portuguese and English colonialist states and left civilisations with enormous background and value, such as Arawaks, Aztecs, Inca and Maya on the dusty pages of history, their remnants can now be seen only in the museums. The Aborigines in Australia have gone through extermination as a result of the exploitative policies of the states; and other different social groups such as the Yezidi, Assyrians, Armenians, Jews, Gypsies and the handicapped have faced the danger of being exterminated directly or indirectly. Even though it has been observed that the acts of violence within many historical periods have reached the extent of genocide, it can be said that genocide has gained a larger and more complicated dimension in terms of quality and quantity since the beginning of the twentieth century, especially with the effect of technological developments in the warfare of modern states. The high-volume of massacres experienced, the war crimes and crimes against humanity committed during the First World War and the tragedy encountered by the Jews from Nazi Fascism have made clear the attempts to define the crime of genocide in the conscience of international community. As a result of this attempt, genocide was criminalised in international law through the Convention on the Prevention and Punishment of the Crime of Genocide in 1948 according to which the Contracting States have undertaken to prevent and punish the crime.

The term “group” has been used in the introductory sentence of the Second Article of the Convention on the Prevention and Punishment of the Crime of Genocide and four groups of victims have been created, these are: nationality, ethnicity, race and religion. The evolution of the restrictive approach in determining the victim groups in the doctrinal discussions took place both during the preparatory works which brought the text of the Convention to maturity and through the final drafting of the text of the Convention. In particular, the removal of “political, linguistic and economic” groups has been subject to criticism.

The resolution of UN General Assembly numbered 96(I) that paved the way for the Convention on Genocide, defines the groups targeted by the crime as “racial, religious, political, and other groups; the UN Secretariat Draft identified the groups slightly differently as “racial, national, linguistic, religious or political groups”; and the Draft of Ad hoc Committee subject to the Economic and Social Council defined racial, religious and political groups as the aggrieved persons.

When the Draft prepared by the Ad hoc Committee was placed before the Sixth Committee established by the General Assembly the discussions were centred upon the notion of political genocide. It was put forward that trying acts of genocide committed against political groups could likely be considered as “interference to internal affairs” by the Contracting States and this could decrease the number of States wanting to become party to the Convention. In particular, States such as the Soviet Union, Poland, Venezuela, Iran, Egypt and Uruguay seriously opposed the inclusion of political groups in the Convention. The states that supported the exclusion of political groups from the scope of the Convention established their argument on the basis that political groups have structurally unstable and variable characteristics.

The basic argument of the Contracting States who supported the inclusion of political and linguistic groups was that distancing the Convention from the “Crime of Genocide” set out in UN resolution 96(I) would be contrary to the previously reached understanding and would injure the reputation of the United Nations. The English and Swedish delegates stated that political groups could have the same perpetual nature as other groups and that there was no clear difference between a membership gained by the individual innately (as is the case with nationality, ethnicity, race and religion) and a membership gained upon preference after the birth (choosing to become part of a political group). Moreover, the delegates emphasised that the bonds of national and religious belonging could be changed as a result of preference and thus asserted that political groups should also be included in the scope of the Convention. By the end of discussions political groups were excluded from the scope of the Convention, the voting concluding with twenty two affirmative votes against six negative votes and the abstention of twelve states.

The above mentioned discussions heated up again during the establishment of the International Criminal Court. The proposal to include political groups into the text of the Rome Statute was brought forward as a consequence of the Khmer Rouge (Red Khmer) in Kampuchea between 1975 and 1979. The people of Kampuchea, who survived the invasion of the USA despite great injuries, suffered a slaughter for the purpose of creating a pure and homogenous nation under the oppressive rule of Democratic Republic of Kampuchea led by Pol Pot. The fact that the slaughterers and the slaughtered were of the same ethnic, national, racial and religious background in this event, in which more than two million people were killed, meant that it was debatable as to whether the mass killing constituted genocide or not. In the report issued by the UN in 1999, the Khmer Rouge (Red Khmer) massacre was approached cautiously and it was stated that the victims could be considered within the nationality group of the Convention but if the offenders were to be brought to trial then the Court could make a decision about the existence or absence of genocide by observing the facts of each concrete case.

A Critical View on the Victim Groups specified in the Convention on the Prevention and Punishment of the Crime of Genocide

According to the generally accepted approach, the crime of genocide is applicable only to the four groups specified in the Convention on Genocide. Linguistic, political and economic groups have been left out of the scope of the Convention, consequently acts intended to destroy these groups cannot be considered genocide even in spite of the intent to commit genocide and regardless of the number of victims. Moreover, other vulnerable groups have not been protected by the Convention on Genocide. In this regard, it is necessary to evaluate the actual and potential acts of annihilation that have been and could be conducted against them.

Firstly, in a report issued in 1985, B.Whitaker, the Reporter of UN Commission of Human Rights, emphasised that there were attempts to systematically annihilate homosexuals during the Second World War.

Secondly, women have faced threats throughout history. For instance one of the first targets of the Inquisition, conducted by misogynistic and homophobic Catholic priests, were the women labelled as “witches” and therefore slaughtered.

Thirdly, the sick and disabled require further mention. During the Nazi regime the schizophrenic, manic-depressive, alcoholic, blind, deaf and anyone with a physical disability were considered to be highly likely to spoil the quality of population. They were collectively castrated by the government, regardless of their race, nationality, religion or ethnic origin. Special courts were founded with the participation of “eugenic experts” and lawyers in order to hand down decisions concerning castration and about three hundred and seventy thousand people went through castration operations from 1933 to 1939. In 1939, “Euthanasia Institutes” were opened under the Charitable Foundation for Cure and Institutional Care, which was founded under the order of Hitler, and patients considered incurable were exterminated in mass.

Fourthly, it is necessary to examine agnostic movements, who find the questions regarding the existence or absence of a divine power unanswerable and atheists, who defend the opinion that there is no creator. Agnostic and atheist groups could be exterminated in mass without falling under the Convention on Genocide whereas a religious group could, how can one explain this inconsistency? In my opinion, the acts of annihilation against these groups must also be included in the Convention.

Finally, in discussing the crime of genocide, the destructive acts of ISIL, who aspire to annihilate everyone who does not support them, must be considered. This organisation has declared war against humanity and has committed atrocities such as destroying historical heritage in Iraq and Syria; leaving the Yezidi people without enough food and water; and trying to annihilate the Yezidi on Mount Shingal. Considering ISIL’s petroleum power, area domination in Middle East and the potential seizure of war machines such as heavy and nuclear weapons, it is clear that they have the power to target many different vulnerable groups. In this case, the whole of humanity should encompass a type of belonging in order for this radicalism to be criminalised as genocidal.

One of the basic legal values protected by the crime of genocide is bonds of belonging. My suggestion is that mass destruction of individuals who are members of any community be handled within the scope of the crime of genocide. If the disabled faced mass destruction for being disabled, homosexuals for being homosexual or disbelievers for disbelieving, then there is no doubt that these atrocities must be assessed within the scope of genocide. In other words, the extermination of different groups that do not bear the characteristics of ethnicity, race, nationality, religion must nevertheless be handled within the scope of genocide. Even if this approach does not gain recognition in positive law, it needs to be accepted that in today’s political platform groups other than those espoused in the Convention on Genocide may be exposed to genocide. It would appear necessary to reconsider and revise the Convention and the UN is required to take steps on this issue.